Give Liberty a Chance!

God has given to men all that is necessary for them to accomplish their destinies…

And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgement of faith in God and His works.

- Frederic Bastiat, The Law, 1850

Thursday, January 31, 2008

Good Constitutions

The separation of powers is a fundamental doctrine within a representative republic. Without it, the three branches of government act independently without restraint creating chaos in an otherwise ordered society in a perpetual race to concentrate power in one branch. The self-imposed process of “checks and balances” crafted at our Nation’s founding and promulgated throughout the constitutions of the States has endured for over 225 years.

One issue that took its turn at center stage at the Constitutional Convention of 1787 was taxes, or more specifically who had the power to tax. After much debate the power to tax was left to the legislative branch, because that is the branch that is directly accountable to the citizens as Thomas Jefferson later noted, “Excessive taxation… will carry reason & reflection to every man’s door, and particularly in the hour of election.”

It is clear that the judicial branch does not have the power to tax. This was clear to the writers of the Constitution and early Founding Fathers. Alexander Hamilton noted, “The Judiciary… has no influence over either the sword or the purse; no direction of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will.” The legitimacy of the judiciary’s decisions is limited to the claim that the court is authorized within the law. Any judge that exceeds such claim becomes a lawmaker, a role granted only to the legislative branch.

Even so, we have seen several examples of appointed judges who have forced local communities and state governments to enact certain laws or levy tax increases. Judge-imposed taxes became an issue here in Missouri during the Kansas City school district desegregation case, Missouri v. Jenkins. A federal judge ordered the state and local governments to increase spending for the school district. The judge also forced the local government to raise taxes. The case went all the way to the US Supreme Court where they upheld a federal court’s ability to force state and local governments to raise taxes.

In Arizona, the state could be held in contempt if they don’t find a way to pay to improve instruction of English to non-native speakers, many of whom are the children of illegal immigrants. The judge directed millions of dollars in penalties to go immediately to Arizona classrooms.

Here in Clay County a judge decreed that a vote of the people of Clay County didn’t count resulting in the county commission imposing a property tax increase without a vote of the citizens. States around the country, including Missouri, have been or are being taken to court to force increases in taxes and spending on everything from transportation to education to health care – a cruel contest where we find ourselves suing ourselves.

While we can’t control the actions of federal judges, we can ensure Missouri judges don’t overreach and stake a claim on the power to tax. A proposal for a constitutional amendment that would clearly state that judiciary does not have the power to tax through court order has been introduced in the Missouri General Assembly. Specifically, this proposed amendment prohibits the Missouri Supreme Court or any other court of the state from ordering the state, a county, or any city to increase taxes. The amendment also prohibits any Missouri court from controlling how the state, a county, or any city spends, allocates, or budgets, except as expressly authorized by legislation or approved by Missouri voters.

We can be proud of our republic with its three distinct branches. We have had exemplary leadership in all three branches throughout the course of our history – we have also seen lapses in judgment from all three branches, yet our state and federal constitutions remain intact a testament to American Experiment in self-government.

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